Law Office of Michael J. Scott, PC – CFPB Complaint 2018-12-26

Date Received: 2018-12-26

Product: Credit card debt

Issue: False statements or representation

Consumer Consent Provided to Share Complaint: Consent provided

Consumer Complaint: Dear XXXX and XXXX, XXXX XXXX XXXX, CFPB, This is in response to your letter dated XX/XX/2018 via the CFPB portal.

XXXX and XXXX demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited. XXXX and XXXX provide no relationship to said creditor hence could be viewed as fraudulent practice.

XXXX XXXX XXXX, the compliance attorney as shown on the letter from XXXX and XXXX explained they are not the owner of the said debt, but however failed to provide answers to my previous questions on fraud and the company violations.

XXXX XXXX XXXX may be qualified to explain what XXXX and XXXX did or with respect to its own records or data created during its time, but he can not establish a foundation for the bank data XXXX XXXX XXXX has no personal knowledge, XXXX XXXX was not a custodian of the banks records while they were with XXXX XXXX, and the records in the XXXX and XXXX possession do not qualify as ordinary business records. Because the electronic file transferred to XXXX and XXXX did not come to XXXX XXXX XXXX as ordinary business records of XXXX XXXX, it can not be said that the data in this file became routine business records of XXXX and XXXX, maintained in the ordinary course of business. Therefore, the documents created by XXXX XXXX XXXX from XXXX and XXXX copy of the electronic file from the transferred accounts could not be said to be routine records maintained in the ordinary course of XXXX XXXX business. This means that XXXX XXXX XXXX affidavit is inadmissible and XXXX XXXX did not have a foundation to be a witness to identify the source documents, the monthly statements or the cardholder agreement. Furthermore, XXXX XXXX avers that he is a compliance attorney of XXXX and XXXX. This means he is not an employee of XXXX bank or previous collection agency that have collected money from XXXX XXXX, and therefore has no cognizable standing as either a custodian or qualified person to establish the nature of file data as a business entity, without first establishing an adequate foundation of the witness as a person with actual knowledge, and then establishing how he obtained any of the knowledge to which he testifies.

Most disturbingly is the fact that XXXX XXXX XXXX intentionally failed to respond to my accusation of re-aging debt which has been reported.

The Federal Trade Commission has stated that disclaiming the accuracy of information is common and recurrent ( FTC DEBT BUYER REPORT, supra note 2, at iii, 25 ). The Restatement ( Second ) of Torts describes a fraudulent misrepresentation as being when the maker does not have the confidence in the accuracy of his representation that he states or implies or knows that he does not have the basis for his representation that he states or implies.

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Without a copy of the underlying contract, XXXX XXXX has no objective way to assess the veracity of Plaintiffs claim. The FDCPA is a strict liability statute intended to be liberally construed to protect consumers ( XXXX v. XXXX. XXXX, XXXX, XXXX XXXX XXXX, XXXX ( XXXX Cir XXXX ). XXXX is not an element of proving an FDCPA violation. Misleading or deceptive representations made as a result of carelessness or negligence are actionable under the FDCPA. All a court needs to find for an FDCPA violation is that the communications from the debtto the consumer would have been misleading to the least sophisticated consumer ( XXXX v. XXXX XXXX XXXX , XXXX, XXXX XXXX XXXX, XXXX ( XXXX XXXX. XXXX ) ). XXXX XXXX your communication was clearly misleading as evidence from your first letter dated XX/XX/XXXX to your most recent letter dated XX/XX/XXXX. Your company alleged the account has not been reviewed and then on request for validation claimed it was reviewed.

In XXXX and XXXX submitted documents and brief there are two contradictory Balances which XXXX XXXX XXXX claims XXXX XXXX owes, in Exhibit 1 for {$1600.00} and in Exhibit 2 for {$1500.00}, demonstrating thereby a lack of sufficient indicia of trustworthiness for accounting in this instance to be considered reliable ( XXXX v. XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX ( XXXX Cir. XXXX ) ).

XXXX and XXXX alleges that XXXX XXXX retains XXXX and XXXX for the purpose of legal collections on the account on XX/XX/XXXX. Yet they wrote a letter 4 days after stating the it has not been personally reviewed. XXXX attached dated XX/XX/XXXX. Then XXXX and XXXX made it very clear that XXXX remains the owner and holder of the account. Which means XXXX and XXXX is a third party with lack of standing to sue. Since XXXX XXXX neither have a contract with XXXX and XXXX and neither have XXXX and XXXX disputed that fact, I will suggest that XXXX and XXXX identify and provide If XXXX XXXX card company had made an agreement with the XXXX and XXXX XXXX XXXX, then XXXX XXXX is not a party to those terms. Just because an assignment clause exists in a credit agreement does not mean that it is sufficient to create a new obligation with the XXXX and XXXX XXXX XXXX. The assignment clause merely takes away the rights of XXXX XXXX which is the original credit card company to collect if they decide to assign it to another company, in this case XXXX and XXXX XXXX XXXX. The collection company would then have to offer you a new contract, you would have to agree to its terms, and you would finally have to sign this new contract. If you have not signed a contract with the collection company, you owe them nothing.

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XXXX XXXX is not an assignee for the purported agreement, and XXXX XXXX representing XXXX and XXXX has not offered any evidence to the contrary.

XXXX and XXXX has not produced any evidence that supports any related claims or assumptions. XXXX and XXXX for the collection company has failed to produce any document that shows they are assigned by XXXX cards or any original credit card company has named them as assignees, nor has he even shown that the original credit card company has any knowledge of his actions, or that the original credit card company has even given this collection company, all rights and control.

Company: Law Office of Michael J. Scott, PC

State/Zip: TX 774XX

Company Response to Complaint: Closed with explanation

Was Company Response Timely: Yes

Did Consumer Dispute Company Response: N/A

Complaint ID: 3109857

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